Academic Dishonesty and the Faculty’s Right to Assign a Grade: A Test of the Academic Senate’s Authority

January
2010
Mark Wade Lieu, Educational Policies Committee

While the Academic Senate has wished on more than one occasion that its resolutions were promptly carried out, the reality is that the will of the Academic Senate is subject to many factors. For example, in spite of its recommendation that information competency be required for obtaining an associate degree, the Department of Finance was able to usurp the Senate’s authority by claiming that implementing such a requirement would be an unfunded mandate. In the area of student academic dishonesty, the Senate has adopted a resolution asking for a change in Title 5 to grant faculty the ability to fail a student in a course for “egregious acts of academic dishonesty” on individual assignments. Some have questioned why the Senate has not been more aggressive on a matter that is clearly under the purview of the Academic Senate according to Title 5 §53200. This article addresses the status of the resolution and the fact that, in this situation, the Academic Senate faces significant challenges to its authority.

To provide some background, we go back to 1995. In response to an inquiry, then Chancellor’s Office Legal Counsel Ralph Black issued a legal opinion that a faculty member could not fail a student in a course for a case of plagiarism or cheating on a single assignment. He noted that each instructor must make clear his/her grading policy and was obligated to follow that policy. He also stated that issues of cheating and plagiarism appeared to be a less a matter of grading than of student conduct.

As the development of essay-writing services and the Internet has facilitated the commission of plagiarism, faculty have become increasingly concerned and outraged by violations of academic integrity on the part of students in their classes. At the same time, the ability of faculty to detect and confirm plagiarism has also increased. Thus, the likelihood of having to deal with such violations has increased as both the ability to cheat and the ability to detect cheating are greater than ever – suggesting that, without employing proper prevention mechanisms, the frequency with which faculty are faced with what they consider “egregious acts of academic dishonesty” may be on the rise.

In Fall 2005, the Academic Senate adopted a resolution to pursue this issue further. The resolves of resolution 14.02 state:

Resolved, That the Academic Senate for California Community Colleges investigate whether or not the interpretation of Title 5 Regulations and Education Code that does not allow an instructor to fail a student for an entire course for one incident of academic dishonesty, no matter how egregious, is correct; and

Resolved, That if the Academic Senate for California Community Colleges finds this interpretation to be correct, then the Academic Senate pursue a change in regulation or law that gives full discretion to the instructor as to the penalty for a student engaging in any form of academic dishonesty.


This prompted the Senate’s Educational Policies Committee to set up a meeting with then Chancellor’s Office Legal Counsel Ralph Black to discuss the issues involved. Mr. Black emphasized the rights of a student to due process and reaffirmed the position he took in the legal opinion issued in 1995.

Faculty continued to question Mr. Black’s opinion, and in 2007, a variation on the original inquiry was submitted to the Chancellor’s Office. The legal opinion that was issued by General Counsel Steve Bruckman reaffirmed the 1995 opinion.

In response to this second opinion, the Academic Senate adopted resolution 14.01 in the fall of 2008. Of the three resolves, this one is the most pertinent to the issue at hand:

Resolved, That the Academic Senate for California Community Colleges convene a group to review and where appropriate draft language to revise Title 5 grading regulations to allow for the failure of students for egregious acts of academic dishonesty;

The question then is what has happened since the adoption of this resolution (on top of resolution 14.02 F05) and the desire to change Title 5?

After adoption of the resolution, I, as the Academic Senate President at the time, presented the resolution to the staff at the Chancellor’s Office and to its legal counsel in particular. While acknowledging that the Academic Senate has purview over grading policies, the Chancellor’s Office raised points that would diminish the Academic Senate’s position in arguing for such a change before the Board of Governors.

First, the Academic Senate would be fighting against two legal opinions on this issue. Given the recency of the second opinion, the Board of Governors would undoubtedly decline to adopt the Senate’s position on legal grounds.

Second, while the Academic Senate is empowered under Title 5, the rights of students to due process are granted under the authority of the 14th Amendment of the United States Constitution. This fundamental right trumps the powers conferred by regulation.

Therefore, at the current time, the Academic Senate finds itself unable to carry out the will of the body in resolutions 14.02 F05 and 14.01 F08. Just as with the issue of information competency, the body can bring the issue back again when it looks like the environment is more conducive to effecting such a change. In the meanwhile, I call your attention to recommendations made in the legal opinions and the Academic Senate (2007) paper Promoting and Sustaining an Institutional Climate of Academic Integrity. Establish a process for the objective review of a student’s academic conduct through a committee of the academic senate (ASCCC, p. 19).

Work with the associated student body to develop or refine a college honor code and related due process (ASCCC, p. 21).

Encourage the review of the weight assigned to class assignments such that acts of cheating or plagiarism on such assignments have significant effect on the final course grade (Black). Provide professional development to support faculty in the development of assignments that are more resistant to cheating and plagiarism (ASCCC, p. 9).

References
Academic Senate for California Community Colleges (ASCCC). (2007). Promoting and sustaining an institutional climate of academic integrity. Sacramento, California: Author. Retrieved January 8, 2010 from http://www.asccc.org/Publications/Papers/AcademicIntegrity.html.

Black, R. (1995). California community colleges chancellor’s office legal opinion 95-31. November 16, 1995. Retrieved January 8, 2010, from http://www.cccco.edu/Portals/4/Legal/opinions/attachments/95-31.pdf.

Bruckman, S. (1995). California community colleges chancellor’s office legal opinion 07-12. December 19, 2007. Retrieved January 8, 2010, from http://www.cccco.edu/Portals/4/Legal/opinions/attachments/07-12.pdf.

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